Lesson 7: Equal Protection: Gender

 To what extent should the courts allow the existence of single-sex military-education institutions?

As the struggle for sexual equality continued, one of the important targets became single-sex military-education institutions, like the Virginia Military Institute (VMI). VMI long remained the sole single-sex school among Virginia’s 15 public institutions. Founded in 1839, VMI’s mission is to produce citizen-soldiers, prepared for leadership in civilian life and military service. VMI’s accomplishments enabled it to acquire a reputation as an incomparable military college. Among its alumni are military generals, members of Congress, and business executives.

In 1990, a female high school student seeking admission to VMI filed a complaint with the Attorney General of the United States. The United States sued Virginia and VMI alleging the VMI’s exclusive male admission policy violated the Equal Protection Clause of the Fourteenth Amendment. The District Court found for VMI. Eventually, the case was heard by the Court of Appeals that found for the U.S. The Court of Appeals gave Virginia the option of establishing a parallel institution or programs for women. In response, Virginia proposed a program for women: the Virginia Women’s Institute for Leadership (VWIL), at Mary Baldwin College, a private liberal arts school for women. Both the District Court and the Court of Appeals accepted VWIL as a viable option for settling the case.

Despite the decision of the Court of Appeals, the United States Supreme Court agreed to listen to the case. In a 7-1 decision issued on June 26, 1996, the Court declared invalid the State of Virginia’s policy barring women from VMI. The Court’s decision held that prohibiting women from attending VMI denied to women, capable of all the activities required of VMI cadets, the equal protection of the laws guaranteed by the Fourteenth Amendment. Second, the Court examined the Virginia Women’s Institute for Leadership, proposed by Virginia to provide women a like kind of education to that received at VMI. Here again, the Court found against Virginia, declaring that the differences between the educational programs offered by VMI and VWIL were so significant that the remedial program did not provide equal opportunity for a military education and therefore did not cure the constitutional violation.

 Students will be able to:

• Analyze the case of the United States v. Virginia et al.
• Discuss the impact of the decision of United States v. Virginia et al on the struggle for women’s rights
• Compare and contrast the cases of VMI and the Citadel

 Handout 7A "United States v. Virginia et al Visual"

Handout 7B "United States v. Virginia et al"

Handout 7C "U.S. v. Virginia: Decision"

 2 class periods

Distribute Handout 7B, "United States v. Virginia et al." Assign students to play one of the following roles: Clerk, Attorney for U.S. #1, Attorney for U.S. #2, Attorney for U.S. #3, Attorney for Virginia #1, Attorney for Virginia #2, Attorney for Virginia #3, Chief Justice, Associate Justice #1, Associate Justice #2, Associate Justice #3, and Associate Justice #4. Divide the rest of the class into "panels of judges" of three or four students to a panel. Tell the panels that they will be listening to a case for which they will have to prepare a decision. Have students enact the brief play, based on the case of U.S. v. Virginia et al. After the play has been enacted have each panel of judges complete the exercise on Handout 7B. Then as part of the whole-class discussion, have students explain/answer the following:

• What is this case about?
• Which are the most important legal issues to be decided?
• Discuss the arguments raised by the U.S. Which was the strongest?
• Discuss the arguments raised by Virginia. Which was the strongest?
• How would you have decided this case, if you were a judge?

Distribute Handout 7C,"U.S. v. Virginia: Decision." Have students explain their answers to the following questions:

• What did you learn from this decision?
• What arguments did the court use to support its decision in favor of Virginia?
• Did the Court reach the correct decision? How convincing were the arguments used by the court to support its decision?
• If you could have asked the attorneys for Virginia one question, what would it have been?
• If you could have asked the attorneys for U.S. one question, what would it have been?

 Ask students to conduct a poll about single-sex educational institutions, consisting of about five questions. Have students draw conclusions about the circumstances under which those surveyed would find single-sex educational institutions proper. Allow students to present their conclusions.

Have students draw editorial cartoons expressing their opinions of the VMI or Citadel cases.

Have students role-play negotiators for VMI and the students who brought suit. Have students attempt to negotiate a settlement of the issue, other than allowing the females the right to enter VMI.

Based on multiple intelligence theory.

Linguistic: Divide the class in half. One half of the class should write a petition to the president of the Virginia Military Institute advocating the admission of women to the university. The petition should be persuasive and explain the benefits of having female members in the student body. The other half of the class should assume the role of president of VMI and respond to the petition.

Have students research the 1997 case involving the females who wished to attend South Carolina's all male military academy, the Citadel. Students should compare and contrast the Citadel's case with VMI's. Let students discuss how they would have decided the Citadel case. Then have them analyze the way the case was actually resolved.

Invite a civil rights attorney to class. Have students question the attorney about the legal justification for a single-sex educational institution.

Logical/Mathematical: Ask students to predict the rate of success for women who enter VMI. Tell students to give reasons for their prediction.

Kinesthetic: Have students hold a rally supporting the admission of women to VMI. At the rally, students should recite slogans and chants and carry posters and placards. Several students should speak to the audience and other students should march and sing protest songs.

Spatial: Have students draw pictures that tell a story of what life would be like for a woman at VMI.

Intrapersonal: Ask students how they think it would feel to be the first woman to be admitted to a previously all male institution like VMI.

Interpersonal: Have students assemble in groups. An equal number of groups should go to two opposite corners of the room. A flip chart will be placed in each corner. One chart will be labeled, "Arguments for an All-Male VMI." The chart in the opposite corner will be labeled, "Arguments to Admit Women to VMI." Each group should approach the chart in their corner of the room and list arguments in support of that position. The group should place a star next to the argument that they believe to be the best. Each group should examine their chart to make sure that no argument has been omitted.

Musical: Have students select a school song that they think is appropriate for an all male university and a school song that they think is appropriate for a coed university.

Have students research the 1997 case involving the females who wished to attend South Carolina’s all male military academy, the Citadel. Students should compare and contrast the Citadel’s case with VMI’s. Let students discuss how they would have decided the Citadel case. Then have them analyze the way the case was actually resolved.

Invite a civil rights attorney to class. Have students question the attorney about the legal justification for a single-sex educational institution.

U.S. v. Virginia et al. presents two issues. First, does Virginia’s exclusion of women from VMI deny to women, capable of all the individual activities required of VMI cadets, the equal protection of the laws guaranteed by the Fourteenth Amendment? Second, does the parallel VWIL program, provide equal opportunities to those provided by VMI, thus satisfying the Amendment’s requirements.

Neither the goal of producing citizens-soldiers nor VMI’s adversative methodology is inherently unsuitable to women. Inherent differences between men and women ... remain cause for celebration, but not for denigration. Sex classifications are sometimes necessary. But such classifications may not be used to create or perpetuate the legal, social, and economic inferiority of women. In order for us to allow sex-based classifications to stand, the State must show that the classification serves "important government objectives." We conclude that Virginia has not shown an "exceedingly persuasive justification for excluding all women from the citizen-soldier training afforded by VMI."

Turning to the remedial program known as the Virginia Women’s Institute for Leadership, we find that there are significant differences between the opportunities afforded those attending VMI and VWIL. These differences are so significant that the remedial program does not provide equal opportunity and therefore does not cure the constitutional violation. VWIL affords women no opportunity to experience the rigorous training for which VMI is famed ... Instead, the VWIL program de-emphasizes military education and uses a cooperative method of education which enforces self-esteem. Virginia said these differences in approach were justified because men and women have different developmental and learning needs. In striking down the VWIL program as inadequate, we reiterate our long-standing view toward gender discrimination: "generalizations about the ‘way women are’ estimates of what is appropriate for women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description." A State controlling gates to opportunity ... may not exclude qualified individuals based on fixed notions concerning the roles and abilities of males and females."